Aufai t/as Little Hearts Family Day Care Service v Queensland Department of Education (No. 2) [2022] QCAT 21

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Aufai t/as Little Hearts Family Day Care Service v Queensland Department of Education (No. 2) [2022] QCAT 21 PARTIES: SONJA AUFAI T/AS LITTLE HEARTS FAMILY DAY CARE SERVICE (applicant) V QUEENSLAND DEPARTMENT OF EDUCATION (respondent) APPLICATION NO/S: GAR269-20 MATTER TYPE: General administrative review matters DELIVERED ON: 11 January 2022 HEARD AT: Brisbane DECISION OF: Member Lember ORDERS: The application for review filed 30 July 2020 is dismissed pursuant to section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). CATCHWORDS: EDUCATION – INSTITUTIONS – EARLY CHILDHOOD EDUCATION AND CARE – family day care – provider and service approval under Education and Care Services National Law (Queensland) – where applicant’s provider approval and service approval was cancelled – where applicant filed an application for review – where applicant is non-compliant with directions – whether application should be dismissed under s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – OTHER MATTERS – where applicant is non-compliant with directions -whether application should be dismissed under s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) Education and Care Services National Law (Queensland) Act 2011 (Qld), s 4, s 42, s 44 Education and Care Services National Law (Queensland), s 15, s 32, s 33, s 34, s 48, s 192, s 193 -- 1 of 6 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 20, s 21, s 32, s 48, s 62, s 114 Uniform Civil Procedure Rules 1999 (Qld), r 389 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Aufai t/as Little Hearts Family Day Care Service v Queensland Department of Education [2020] QCAT 387 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 Dey v Victorian Railways Commissioners [1949] 78 CLR 62 Peter Douglas Fleming v Gladstone Regional Council [2021] QCAT 432 Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 Yeo v Brisbane Polo Club Inc [2013] QCAT 261 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION What is this decision about? The Queensland Department of Education (“the Department”) regulates family day care services under the Education and Care Services National Law (Queensland) (“National Law”). Section 4 of the Education and Care Services National Law (Queensland) Act 2011 (Qld) (“the National Law Act”) adopts the National Law as in force from time to time. Ms Aufai operated the Little Hearts Family Day Care Service (“the service”) under provider approval PR-40017615 (“the provider approval”) under section 15 of the National Law and service approval SE-40012333 (“the service approval”) under section 48(1) of the National Law from 14 October 2019. Between 12 November 2019 and 12 February 2020, the Department issued Ms Aufai with nine Emergency Action notices and two Compliance Notices and, ultimately, on 27 March 2020, a Show Cause notice under section 32(2) of the National Law foreshadowing findings against Ms Aufai with respect to failing to ensure that staff and family day care educators within the service were following regulations set out in the National Law and that they were failing to follow the service policy and procedures. On 17 July 2020, pursuant to section 33(1) of the National Law, the Department decided to cancel the provider approval (which has the consequence of also cancelling the service approval under section 34(1)), citing Ms Aufai’s extensive non- compliance with identified regulations. -- 2 of 6 -- 3 On 30 July 2020 Ms Aufai applied to the tribunal for a stay and review of that decision, being jurisdiction granted to the tribunal by sections 192 to 193 of the National Law and s 42 to s 44 of the corresponding of the National Law Act. On 6 September 2020 the application to stay the decision made on 17 July 2020 was refused in a decision of Member Kent.1 After some initial on-the-papers directions about the stay application and Ms Aufai’s request for leave to be legally represented in these proceeding, the following directions were made (among others): (a) On 4 September 2020 that the matter is listed for a directions hearing on 14 September 2020; (b) On 14 September 2020, in a directions hearing, that Ms Aufai file all material upon which she intended to rely for her hearing by 3 November 2020, and that the matter is listed for a compulsory conference on 10 November 2020; (c) On 9 January 2021, on the application of Ms Aufai, that the time for the filing of her material was extended to 15 January 2021; (d) When Ms Aufai did not attend the compulsory conference and could not be contacted for it, on 10 February 2021 that Ms Aufai file a written explanation for her failure to attend by 10 February 2021; and (e) On 1 March 2021 that the time for filing of Ms Aufai’s material was further extended to 22 March 2021. Ms Aufai did not file material as directed and on 26 May 2021 the Department filed an application for miscellaneous matters seeking that the application for review be dismissed due to Ms Aufai’s non-compliance with tribunal directions (“the strike out application”). On 28 May 2021 Ms Aufai was directed to file submissions on the strike out application by 1 June 2021 but she has failed to do so. A decision on the strike out application, and the reasons for it, follows. Can the tribunal dismiss the application for non-compliance with directions? The tribunal is mandated2 to deal with matters in a way that is accessible, fair, just, economical, informal and quick, and, to that end is required, among other things, to: (a) encourage the early and economical resolution of disputes before the tribunal;3 and (b) ensure proceedings are conducted in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice.4 1 Aufai t/as Little Hearts Family Day Care Service v Queensland Department of Education [2020] QCAT 387. 2 Section 3(b), of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”). 3 Section 4(b), ibid. 4 Section 4(c), ibid. -- 3 of 6 -- 4 In administrative review proceedings, the tribunal reviews the circumstances afresh in order to produce the correct and preferable decision.5 The role of the Department is to assist the tribunal in making that decision,6 rather than to take an adversarial role or to defend the decision under review. Even though not adversarial, this role of ‘model litigant’ usually requires a considerable investment of resources in order for the respondent to perform it properly, including attendances at tribunal hearings and preparing and filing material and submissions in response to the application. Justice is often achieved after a full hearing and tested evidence in a matter. However, section 62(1) of the QCAT Act permits the tribunal to give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding. To that end the tribunal can: (a) make such directions as the tribunal considers appropriate for achieving the purpose for which the tribunal may exercise the primary power;7 (b) decide interlocutory applications upon the written submissions of the parties without those parties or their representatives appearing at a hearing;8 and (c) dismiss a proceeding if satisfied that a party to a proceeding is acting in a way that unnecessarily disadvantages another party in the proceeding including by not complying with a tribunal order or directions without reasonable excuse.9 To “cause disadvantage” includes not complying with a tribunal order or direction without reasonable excuse10 and failing to attend conciliation, mediation or the hearing of the proceeding without reasonable excuse.11 In considering a dismissal on the grounds of causing unnecessary disadvantage under section 48 of the QCAT Act the tribunal must consider: (a) the extent to which the party causing the disadvantage is familiar with the tribunal’s practices and procedures; (b) the capacity of the party causing the disadvantage to understand, and act on, the tribunal’s orders and directions; and (c) whether the party causing the disadvantage is acting deliberately.12 The power to strike out ought only to be exercised “sparingly”.13 5 Section 20 of the QCAT Act. 6 Section 21, ibid. 7 Section 114, ibid. 8 Section 32(2), ibid. 9 Section 48, ibid. 10 Section 48(1)(a), ibid. 11 Section 48(1)(g), ibid. 12 Section 48(3), ibid. 13 Yeo v Brisbane Polo Club Inc [2013] QCAT 261, [5]-[7] citing Dey v Victorian Railways Commissioners [1949] 78 CLR 62. -- 4 of 6 -- 5 Should the application for review be dismissed under section 48 of the QCAT Act? Courts have long shown a willingness to dismiss proceedings for “want of prosecution” and most rules of Court make provision for such an application.14 Factors such as the extent of the delays, the applicant’s prospects of success, disobedience with directions and whether there is a satisfactory explanation for the delay are all considered by the Court when exercising its discretion whether to dismiss for want of prosecution.15 Whilst formality is not part of the tribunal’s mandate, the tribunal nonetheless need be mindful that their resources serve the public as a whole, not just the parties to proceedings before it. Justice Wilson said just this in Creek v Raine & Horne Real Estate Mossman:16 The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, “… the public as a whole, not merely the parties to the proceedings”.17 In Peter Douglas Fleming v Gladstone Regional Council18 the tribunal dismissed an application for review pursuant to section 48 of the QCAT in circumstances where the applicant first sought two extensions of time for the filing of submission on a strike out application (which were granted) and then failed to comply with two further opportunities given as directions to file material. Member Browne was satisfied that the applicant had failed to provide reasonable excuse for his non-compliance with directions, that he had failed to take care in his dealings with the tribunal19 and that he did not take necessary steps to progress his application.20 The Department submit that Ms Aufai has acted in a way that unnecessarily disadvantages the Department by: (a) not complying with directions to file material despite more than thirty-five weeks being afforded to her to do so; (b) failing to attend the compulsory conference without reasonable excuse; and (c) failing to respond to correspondence and calls from the Department to progress the application. In terms of section 48(3) factors, the Department say that: (a) Whilst Ms Aufai may not be personally familiar with the tribunal’s practices and procedures, she was legally represented when the direction to file evidence was made, when it was extended and when the compulsory conference was 14 For example, Rule 389 of the Uniform Civil Procedure Rules 1999 (Qld). 15 Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 at [2]. 16 [2011] QCATA 226 at paragraph [13]. 17 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217. 18 [2021] QCAT 432. 19 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 at [9], citing Aon, ibid. 20 Ibid, at [21]. -- 5 of 6 -- 6 scheduled and, therefore she has been advised on such practices and procedures and has capacity to understand, and act on, the tribunal’s orders and directions. (b) Ms Aufai is acting deliberately to delay the proceedings because the choice not to file material is a deliberate one, given that the applicant has selectively replied to correspondence from the tribunal but has not replied to the Department’s correspondence, and note the applicant’s expressed intention in the directions hearing on 1 March 2021 to file material if given an extension of time to do so (which she was granted). Finally, the Department notes that it is suffering disadvantage by having to spend time and resources (at taxpayer expense) to deal with the application over the many months since it was filed in July 2020. I find – particularly in the absence of any contrary submissions from Ms Aufai – that: (a) Ms Aufai does not have reasonable excuse for failing to comply with tribunal directions; (b) Ms Aufai has been afforded procedural fairness by having input in the time limits imposed for the filing of material and by the fact that many extensions of time for the filing of material have been granted to her; (c) Ms Aufai was legally represented when the directions were first given, and when the due date for the filing of material was extended and participated on a self-represented basis in the directions hearing in which the final extension of time was requested and granted, so she well understood what was required of her and when it was required by; (d) The actions of Ms Aufai are deliberate because they are a consequence of a conscious choice; (e) The actions of Ms Aufai in not complying with directions, in not taking care in her dealings with the tribunal and in not acting reasonably to progress her application are causing unnecessary disadvantage to the Department and, if allowed to continue, risk wasting the time and resources of both the Department and the tribunal; and (f) If the proceedings were to remain on foot, the tribunal would not be meeting its mandate to conduct matters quickly and economically, nor to use its resources appropriately for the public as a whole. I am satisfied for those reasons that the application for review filed 30 July 2020 should be dismissed pursuant to section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 6 of 6 --